Caldwell v. Ryan

Decision Date27 February 1908
Citation108 S.W. 533,210 Mo. 17
PartiesCALDWELL v. RYAN.
CourtMissouri Supreme Court

Lamm and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Sullivan County; Jno. P. Butler, Judge.

Action by Robert Caldwell against Dennis Ryan. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See 79 S. W. 743.

Wilson & Clapp, for appellant. Wattenbarger & Bingham, for respondent.

VALLIANT, J.

This is a suit to recover the value of two mules which plaintiff avers belonged to him and were unlawfully converted by defendant. Prior to this suit, the defendant, Ryan, had brought an action of replevin against the plaintiff, Caldwell, for the possession of two mules, and, having given bond according to the statute, the mules were by the constable taken from Caldwell and delivered to Ryan. Pending that replevin suit, Ryan caused the mules to be sold under a chattel mortgage which he held. The replevin suit resulted in a judgment in favor of Caldwell for the return of the mules; but there was no assessment of their value, hence no judgment in the alternative against Ryan for their value. When the replevin suit ended, and the mules were not forthcoming to satisfy the judgment, and Caldwell having no judgment therein for their value, he brought this suit to recover $200 as for their conversion. The defendant's answer was a general denial and a "set-off and counterclaim" consisting of two judgments previously rendered in his favor against the plaintiff, amounting, with interest, to $718.92. Plaintiff in his reply alleged that he was the head of a family, and as such was entitled to hold the judgment he was seeking to recover against the defendant exempt from execution under section 3159, Rev. St. 1899 [Ann. St. 1906, p. 1795], he having no other property, and therefore the defendant had no right to set off his judgments against it. The trial resulted in a judgment for the plaintiff for $189.70 on his demand, and in favor of defendant for $718.92 on his counterclaim; but it was adjudged that the defendant was not entitled to offset the judgment against him by his judgment against the plaintiff. Therefore execution was awarded in plaintiff's favor for $189.70 and costs, and also judgment in favor of defendant, on his counterclaim, for $718.92 and costs, and execution awarded. From the judgment in favor of the plaintiff, the defendant has appealed. The appeal was taken to the Kansas City Court of Appeals, where the judgment was affirmed; but, one of the judges of that court being of the opinion that the decision was in conflict with the law as declared by this court in Garrett v. Wagner, 125 Mo. 450, 28 S. W. 762, and by the St. Louis Court of Appeals in Weinrich v. Koelling, 21 Mo. App. 133, the cause was transferred to this court.

Defendant's assignments of error cover three points: (1) That the plaintiff, having failed to have the value of the mules assessed in the replevin suit, is precluded now from recovering their value in a suit for conversion. (2) That the court erred in including in the assessment of plaintiff's damages an item of $25 expenses he incurred in the former suit. (3) That the court erred in refusing to allow the defendant to offset his counterclaim against the plaintiff's demand. After the judgment was rendered, the plaintiff entered a remittitur as to the disputed item of $25, therefore that assignment is out of the case.

1. The result of the replevin suit was a judgment that the mules belonged to Caldwell, the plaintiff in this suit, and that he was entitled to the possession. The verdict should have gone further and assessed the value of the mules, and the judgment should have followed the verdict and have given Caldwell the choice to take the mules or their value. Sections 3921, 4473, and 4474, Rev. St. 1899 [Ann. St. 1906, pp. 2163, 2452, 2453]. But, in point of fact, the only thing adjudged was that they were Caldwell's mules. Defendant, Ryan, now thinks that, because the plaintiff acquiesced in the judgment as it was, he has no right to call him to account for the value of the mules wrongfully disposed of while the replevin suit was pending. The Kansas City Court of Appeals ruled that point against defendant, and correctly so. The purpose of this statute was to settle in the one suit all questions that might arise out of the alleged unlawful taking or detention of the property. The assessment of the value was for the benefit of the party found to be entitled to the possession of the property, and the law gave him the right to elect which he would take, the property or its value. If his choice was the property, not its money value, and if the property was forthcoming to satisfy the judgment, the assessment would be of no consequence to him. His acquiescence in a judgment for the possession when there was no assessment of value would place him in the same condition that he would have been placed by his election to take the property instead of the assessed value if there had been an assessment. Defendant relies on White v. Van Houten, 51 Mo. 577, wherein the court said: "The law surely contemplated that when the case was prosecuted to final judgment all questions of value, damages, and costs should be disposed of in the same proceeding." And the court held that the plaintiff in that case could not, in an action on the replevin bond, recover damages for the detention of the property when none had been assessed by the jury in the replevin suit. But there was a material difference between that replevin suit and the one we are now discussing. There, as here, the plaintiff had sued in replevin before a justice of the peace, had given bond, and the property had been delivered to him. On...

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    ...This is so as to its being a set-off, because it is a claim for unliquidated damages. Barnes v. McMullins, supra; Caldwell v. Ryan, 210 Mo. 17, 108 S. W. 533, 16 L. B. A. (N. S.) 494, 124 Am. St. Rep. 717, 14 Ann. Cas. 314; Brokerage Co. v. Campbell, 164 Mo. App. 8, 147 S. W. 545; Scarritt ......
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